The opinion of the court was delivered by: Mauro ,j.
A jury convicted defendant Mario Campbell of 20 crimes arising from two incidents: a home-invasion on August 27, 2008, involving residential burglary, robbery, assault with a firearm, forcible sexual penetration, sexual battery, false imprisonment, and attempting to dissuade a witness; and an incident on October 29, 2008, involving possession by a felon of a firearm and possession of cocaine base. The jury also found true a number of enhancements. The trial court sentenced defendant to prison, characterizing the sentence as a determinate term of 101 years 4 months, followed by an indeterminate term of 175 years to life.
Defendant now contends on appeal that (1) there was insufficient evidence to support one conviction for sexual penetration, (2) an instruction for juror unanimity was defective, and (3) certain firearm enhancements were improper. We conclude (1) substantial evidence supports the sexual penetration convictions, (2) the juror unanimity instruction was not defective, and (3) as the Attorney General concedes, some firearm enhancements should not have attached to certain counts. We will clarify defendant's sentence (correcting the enhancement error and the trial court's erroneous double-counting of 50 years), modify the judgment, and otherwise affirm.
Remy M. was an adult male who knew defendant. Remy lived in a household with an adult female, Lynell D., with Lynell's two children (ages two and five), and with Lynell's 15-year-old sister, Brandi D. Remy and defendant gambled with dice. The day before the home invasion, Remy won over $1,000 in a dice game, and this angered defendant.
The next night, August 27, 2008, around midnight, Remy was on his balcony. He saw defendant and another man outside his home, asked them if they wanted to smoke marijuana, and went into the house to get a lighter. Defendant and his accomplice entered Remy's house without invitation. Defendant had a gun. Defendant told his cohort to take Lynell to look for a gun, but when she told the man there was no gun, he threatened to hit her in the head with a bottle if she did not tell him where it was. The man then "rampag[ed]" through Lynell's room, taking about $2,000 and marijuana. The accomplice then took Lynell to Brandi's room to look for the gun, started "tearing all the boxes down," and woke Brandi up.
Defendant ordered Remy, Lynell and Brandi to remove all of their clothes. The crime partners then tied the victims up with wire. Lynell and Brandi were tied as follows: "We were both laying on our backs. And he starting tying up our feet first, then our arms together. Then he connected the two so both of our arms and feet were up in the air."
Defendant asked if Brandi was a virgin, asked his cohort "should we fuck?," and he and his cohort began kissing and rubbing Brandi and Lynell. Brandi began to cry. Defendant put his fingers in Brandi's anus three times and put his fingers in Lynell's vagina. Defendant also put his gun in Lynell's mouth, saying the gun "will wipe all of us out. Won't leave no one alive." When Lynell's two-year-old child cried, defendant put the gun to the two-year-old's head and told her to quit screaming or he would shoot her.
Defendant also struck Remy on the head with the gun about eight times, "just like every five minutes." Defendant asked Remy, "Why you quitting the dice" -- apparently expressing anger that the dice game had ended with Remy ahead.
Defendant said the gun was a "Mac 11" and later said "if I set off one round . . . this shit will blow up . . . this whole household." Defendant said that if the victims called the police, he would return and kill all of them. The crime partners took various items, including money, marijuana and the telephone. As the men left, they told the victims "not to get up for 15 minutes" or the men would come back and kill them.
Lynell managed to untie the others, and the family dressed, fled to a store to call 911, and signaled to a responding patrol car for help.
After the home invasion, defendant called Lynell and threatened to kill the family because they had called the police. He also called Remy and said "I heard you called the police" and "If you want to do it like that, I'm going to [k]ill your whole family."
Then, regarding a subsequent incident, a probation officer testified that on October 29, 2008, he found defendant in a particular bedroom where drugs and a gun were also found, and defendant told the officer those items were his. Another probation officer testified that he found "a nine-millimeter M-11" inside the wall of a closet of that bedroom. He also found a white substance he thought was drugs and some marijuana in that bedroom.
Sergeant Lisa Bowman, a detective with the sexual assault bureau, testified that she listened to four telephone calls defendant made to his girlfriend from jail. Two calls were made on November 6, 2008, one call was made on November 7, 2008, and one call was made on November 10, 2008. Recordings of the calls were played at trial. In one portion of a call, defendant mentioned the police matching DNA with a T-shirt he left at Remy's house after the dice game, and in another portion of a call, defendant said he would write a letter telling his girlfriend what to do, because he did not trust the phones. Defendant and his girlfriend later discussed having defendant's brother Wayne "cash" someone "out" in exchange for dropping the charges, or at least changing "statements," which would be good for defendant, but that the "bitch" had said it was not about the money because "somebody had a gun to my baby's head."
The parties stipulated that defendant had previously been convicted of a felony; that the white substance found by the probation officer was cocaine base; and that DNA from the T-shirt at the house could have come from defendant, but could not have come from Remy, Lynell or Brandi. The parties further stipulated that peace officers would testify to particular inconsistent statements made by Brandi and Lynell, including that Lynell said defendant's accomplice put his fingers in her vagina. Moreover, Remy was impeached with convictions for misdemeanor domestic violence and felony possession of marijuana for sale.
In closing argument, the defense emphasized the burden of proof, inconsistencies or implausibilities in the testimony, and argued the victims were untruthful. The defense conceded guilt on the gun and drug charges stemming from the search.
The jury found defendant guilty of residential burglary (Pen. Code, § 459), robbery (three counts pertaining to Remy, Lynell & Brandi) (id., § 211), assault with a firearm (three counts as to Remy, Lynell & the two-year-old) (id., § 245, subd. (a)(2)), forcible sexual penetration (three counts as to Lynell, two counts as to Brandi) (id., § 289, subd. (a)(1)), sexual battery upon a restrained person (Lynell) (id., § 243.4, subd. (a)), false imprisonment by violence or menace (three counts as to Remy, Lynell & Brandi) (id., § 236), attempting to dissuade a witness (Remy) (id., § 136.1, subd. (b)(2)), possession by a felon of a firearm (two counts) (id., § 12021, subd. (a)(1)), and possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). The jury also found defendant personally used a firearm ...